CLA-2 CO:R:C:T 088536 KWM
Mr. Nicholas R. Devine
Assistant District Director
United States Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266
RE: Application for Further Review of Protest No. 3805-0-000026
and 3801-0-002594; Wiper blades; Windshield wiper blades; Parts
of windshield wipers; Parts and accessories of motor vehicles;
articles of rubber; vulcanized and hard rubber.
Dear Mr. Devine:
This protest was filed in response to your decision in the
liquidation of various entries of windshield wiper blades. The
goods were imported from Canada through the port of Detroit,
Michigan. Our decision follows.
Two articles are at issue here. They are described as
"windshield wiper blades" and "windshield wiper refills." Each
is part of an automobile windshield wiper. The windshield wiper
blade has two components: a rubber squeegee and a frame which
holds the squeegee. This protest is concerned with both the
"refill" (the rubber squeegee) and the "blade" (wiper frame with
The windshield wiper blade consists of a long frame made of
(in this case) plastic. Along one edge of the frame is attached
a narrow rubber squeegee (the "refill"). The refill is
removable, facilitating replacement when the rubber becomes
brittle through time and use. The plastic frame is specially
constructed so that the rubber strip is held firmly and with
constant tension against the windshield surface. The rubber
squeegee forces water across and off the surface of the glass as
the motor propels the entire blade assembly back and forth across
The imported blades may be sold either as original
equipment on motor vehicles, or in the aftermarket as replacement
parts. The sample received in this office was packaged for
retail sale as an aftermarket part. The refills are sold
primarily for replacing original rubber which has deteriorated.
The refills have a thin plastic spine which aids in their
insertion into the frame.
The goods were originally entered under heading 8512 of the
Harmonized Tariff Schedule of the United States (HTSUSA).
However, that heading was deemed inapplicable, and the port of
entry classified the goods under subheading 4016.99.50, HTSUSA,
in accord with Headquarters Ruling Letter (HRL) 083970. As
products of Canada included in subheading 9905.00.00 (HTSUSA),
the rate of duty for the merchandise was 4.2 percent ad valorem
in 1989, and 3.2 percent ad valorem in 1990. The protestant
asserts that the merchandise should be classified under heading
8708, HTSUSA, as parts of motor vehicles.
Are the windshield wiper blade refills classified as
articles of vulcanized rubber, as parts of windshield wipers or
as parts of motor vehicles?
Are the windshield wiper blades classified as articles of
vulcanized rubber, as parts of windshield wipers or as parts of
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relevant
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI's may be
applied, taken in order.
Exclusion from Section XVI and XVII, HTSUSA
Section XVI, HTSUSA
The protest documents suggest that Section XVI heading
8512, HTSUSA, was considered ineligible for classification for
this merchandise. That consideration was based on Legal Note
1(a) to Section XVI, HTSUSA, which excludes from the headings of
that section "articles of a kind used in machinery or mechanical
or electrical apparatus or for other technical uses, of
vulcanized rubber other than hard rubber (heading 4016)." In
excluding the merchandise from Section XVI (and subsequently from
heading 8512, HTSUSA), the implication is that the blades and
refills are considered to be "article[s] of rubber"; i.e., that
the rubber component determines classification. As detailed
below, we do not believe that the Section XVI, HTSUSA, exclusion
is applicable to all of the merchandise at issue.
Section XVII, HTSUSA
A similar exclusion exists for goods of Section XVII,
HTSUSA. Legal Note 2(a) to Section XVII, HTSUSA, provides:
2. The expressions "parts" and "parts and accessories" do
not apply to the following articles, whether or not they are
identifiable as for the goods of this section:
(a) Joints, washers, or the like of any material
(classified according to their constituent material or in heading
8484) or other articles of vulcanized rubber other than hard
rubber (heading 4016);
(Emphasis added). Therefore, if the implication that these are
articles of rubber proves correct, they will be excluded from the
headings of Section XVII, HTSUSA as parts of motor vehicles. In
support of their assertion that the goods may be classified in
Section XVII heading 8708, HTSUSA, the importer states:
There is no Note in Section XVII or Chapter 87 which
precludes classification of vulcanized rubber products within
HTSUS 8708.99.5090 [parts and accessories of motor vehicles].
We do not agree with that assertion, noting the express language
of the above legal note which provides just such a preclusion.
Prior Customs Rulings
Customs has addressed the classification of what appear to
be similar articles on two prior occasions, in Headquarters
Ruling Letter (HRL) 083970 and New York Ruling Letter (NYRL)
826598. It has been suggested that these prior rulings may be in
conflict. We do not believe this to be the case. Keeping in
mind that two distinct but related articles are at issue in this
case, we consider below the holdings of our previous rulings.
"Refills" and HRL 083970
HRL 083970 classified merchandise referred to as a "double
edge windshield wiper blade." It is described as "an article
approximately 18 inches long and consisting of a double edge
rubber wiper blade portion attached at the top to a plastic spine
or frame with steel retainer clip on one end. After importation,
the article will function as the blade portion of an automotive
windshield wiper." The articles classified in that case are
essentially identical to the "refills" at issue here. HRL 083970
held that the character of the merchandise was imparted by the
vulcanized rubber component, thus excluding them from
classification in Section XVI (or XVII), HTSUSA (as described
above). The merchandise in HRL 083970 was classified in heading
4016, HTSUSA. The refills at issue here should be similarly
classified. As we stated in HRL 083970:
[T]he wiper blade is designed to clean automotive
windshields. In our opinion, it is the rubber portion therefore
that performs the wiping function. The rubber portion imparts
the essential character to the wiper blade.
That analysis is true here as well. As between the rubber strip
component and the plastic spine component of the refills, it is
the rubber which is essential to the functioning of the refill in
the cleaning of automotive windshields.
"Blades" and NYRL 826598
NYRL 826598 reached a result different from that of HRL
083970 for merchandise described simply as "windshield wiper
blade[s]." NYRL 826598 did not exclude the goods from
classification in Section XVII, HTSUSA, as articles subject to
Legal Note 2(a). Without a more detailed description or a sample
of the goods at issue, we will not "second-guess" the findings of
that ruling letter. However, after examining the goods at issue
in the present case, we do not believe that HRL 083970 (above)
and NYRL 826598 are necessarily in conflict. NYRL 826598 may
well have classified goods the character of which was not
imparted by a vulcanized rubber component.
In this case, the items described as "wiper blades" differ
significantly from the "refills" classified in heading 4016,
HTSUSA. Even at first glance it is obvious that the full blade
assembly contains a much larger amount of plastic and several
interrelated components, only one of which is the rubber "refill"
strip. The classification of the refill was premised on the
functional role of the rubber in cleaning the windshield. In the
case of the blade assembly, that constituent role is reduced.
The plastic framework serves to hold the rubber squeegee against
the windshield. The various components work as a sort of spring,
providing a constant wiping tension. In addition, the rigid
frame acts to transfer the action of the motor and move the
entire assembly back and forth across the windshield. We find
that, in the case of the "wiper blade", the character is not that
of the vulcanized rubber. Therefore, we conclude that the
"blade" is not excluded from Section XVI or XVII, HTSUSA.
Note 2(b) to Section XVI, HTSUSA, provides that parts of
machines if suitable for use solely or principally with a number
of machines of the same heading are to be classified with
machines of that kind. In section XVI, heading 8512 provides
Electrical lighting or signaling equipment (excluding
articles of heading 8539), windshield wipers, defrosters and
demisters, of a kind used for cycles or motor vehicles; parts
(Emphasis added). We find that heading 8512, HTSUSA, provides
for the wiper blades.
The protest should be denied with respect to that portion
which protests the classification of wiper blade refills
consisting of a rubber strip/squeegee combined with a narrow
plastic backing in subheading 4016.99.50, HTSUSA.
The protest should be allowed in part with respect to that
portion which protests the classification of wiper blades in
subheading 4016.99.50, HTSUSA. Those goods described as wiper
blades consisting of a rubber strip squeegee with a plastic
backing combined with a plastic and/or metal frame for holding
the rubber firm against the windshield, are classified as parts
of windshield wipers in subheading 8512.90.90, HTSUSA.
Articles that meet the definition of "goods originating in
the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA)
are subject to reduced rates of duty under the United
States-Canada Free Trade Agreement Implementation Act of 1988.
If the merchandise constitutes "goods originating in the
territory of Canada," it will be eligible for reduced rates of
duty under subheading 9905.00.00, HTSUSA.
A copy of this decision should be attached to the CF 19
notice of action to be returned to the protestant, in fulfillment
of the notice requirement of Section 174.30(a) of the Customs
John A. Durant
Commercial Rulings Division